"The Voice of the New Due Process Army" ————– Musings on Events in U.S. Immigration Court, Immigration Law, Sports, and Other Random Topics by Retired United States Immigration Judge (Arlington, Virginia) and former Chairman of the Board of Immigration Appeals Paul Wickham Schmidt. To see my complete professional bio, just click on the link below.
Nancy Gibbs Professor, Harvard University Former Editor, Time
Nancy Gibbs writes in WashPost:
Nancy Gibbs is director of the Shorenstein Center on Media, Politics and Public Policy at Harvard University and a former editor of Time.
It is not an act of particular virtue to love your children and treat them well; instinct and evolution privilege our own kids, and from the moment they blink into the world, we would risk anything for their safety, sacrifice anything for their happiness.
It’s how we treat other people’s children that measures and tests us today. And here, as we shudder at the impact of his immigration policies on families, I can’t help but think that President Trump is channeling parents on both the right and the left who’ve decided that other people’s children don’t matter, as long as their own get ahead.
Anyone asserting the existence of certain universal values could always default to this: No decent society would ever argue that it’s okay to torture children. Which made it all the more chilling when U.S. Immigration and Customs Enforcement officers in Mississippi swept up about 680 undocumented workers, leaving some children to return from the first day of school to locked houses, missing parents and shattered families. The spectacle — and it was flaunted as a spectacle, the largest one-state immigration enforcement effort in U.S. history — does not just challenge us on how best to balance politics, economics and justice. It asks us, “When is it okay to torment other people’s kids?”
For Trump, the answer was clear and blithely callous: “This serves as a very good deterrent,” he declared. What parent watching the sobbing children would dare step foot across a border illegally? “I just hope to keep it up,” he said.
You don’t have to be an apologist for open borders to conclude that there are ways to promote security that stop short of emotional torture. Yes, children often suffer when parents commit crimes, but that is the collateral damage of enforcement, not its goal.
Still, the mentality that justifies harming children so long as they’re not your own is not unique to the president. From the beginning of this year to mid-August, the Centers for Disease Control and Prevention confirmed more than 1,200 cases of measles, the most since 2000. Arrogance plus ignorance takes its toll: Parents who won’t “risk” vaccinating their own children discount the risk to others. If they think vaccines are more dangerous than the diseases they prevent, they should hope other parents stop vaccinating, as well. But more likely they are counting on others to comply so that their own children can have the best of all worlds: no vaccine and little chance of exposure to disease.
In a different way but in the same spirit, the psychotically ambitious parents of the “Varsity Blues” college admissions scandal did not care who they deprived of a spot at Stanford or the University of Southern California as long as their children succeeded. Unlike many things in life, college admissions is zero-sum; an unqualified student who bribes her way in takes a spot from someone who tried to earn it. Need extra time for the SAT? Get a doctor to diagnose a learning disability. Between 2009 and 2016, the number of students getting special accommodations more than doubled, according to an analysis by the Wall Street Journal. At one school in affluent Westchester County, N.Y., nearly 1 in 5 students had special testing privileges, which was nearly 10 times the national average.
These are starling parents, like the birds that destroy other birds’ eggs to take their nests and protect their own. For if every parent puts his or her child first at all costs, communities degrade, schools can’t function, society becomes ungovernable. And while they are not natural objects of sympathy, the cheaters’ children suffer, as well. The most obvious victims are the ones who end up sick or disabled by infections that could have been avoided. But moral infection eats you from the inside, rots relationships, wounds self-worth. As the college admissions scandal unfolded, I kept wondering what scars the parents’ ambitions left on their children. “The ruin of a nation,” a Ghanian proverb warns, “begins in the homes of its people.”
Which brings us back to our larger family. America’s identity derives from ideals that set us apart from the places we left to come here: freedom and fairness, justice and mercy, where anyone with moxie and muscle can build a future. We care for our neighbors; we honor service and sacrifice. Soldiers died for these values; parents watched sons and daughters go to war, sacrifice that which was most precious, to defend something bigger than ourselves.
This president doesn’t seem to think very much of our national character. He discounts our instinctive generosity to those in need, our compassion not just for our own children but all children, our confidence that we can succeed together, not just at each other’s expense.
What happens when nothing is bigger than oneself, no value is worth sacrificing for and it’s every man for himself? We are finding out.
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Trump constantly preaches a foul doctrine of “beggar thy neighbor.”
Raul A. Reyes is an attorney and a member of the USA Today board of contributors. Follow him on Twitter @RaulAReyes. The opinions expressed in this commentary are solely those of the author. View more opinions on CNN.
(CNN)When all else fails, lock up children. That’s the message from the Trump administration, which on Wednesday announced a regulation allowing it to indefinitely detain migrant families who arrive at our southern border. The new rule would replace a court agreement known as the Flores settlement, which sets minimum standards for migrant children in government custody, and limits their detention to 20 days.
Speaking at the White House, President Trump told reporters that his new rule will “make it almost impossible for people to come into our country illegally.”
What the rule won’t do is help solve the humanitarian crisis at the border. The new rule is legally and logistically suspect. The only thing it guarantees is that more children will suffer greatly.
For decades, the treatment of detained migrant children has been governed by the Flores settlement. Aside from limiting the length of time that the government can keep immigrant children in custody, it mandates that kids be kept in the least restrictive setting possible, and that they receive food, water and other basic services.
Acting Secretary of the Department of Homeland Security Kevin McAleenan said the Flores settlement has been the driving force behind unauthorized migration from Central America to the U.S. “This single settlement has substantially caused, and continues to fuel, the current family unit crisis… until today,” he said Wednesday.
But he has no data to back him up. On the contrary, ample research shows that the migrants are driven here by violence, gang activity, poverty and civil instability in Guatemala, Honduras and El Salvador.
As they have done throughout American history, people are fleeing for their lives from dangerous nations to seek safety, a new start and better lives in our country. They are not rushing to the US to take advantage of Flores.
<img alt=”Yes, Obama deported more people than Trump but context is everything” class=”media__image” src=”//cdn.cnn.com/cnnnext/dam/assets/170305143551-trump-obama-split-large-169.jpg”>
Members of the Trump administration are fond of characterizing the Flores settlement as a “loophole” in need of fixing.
Not true.
The Flores settlement began as a 1985 class-action suit against the Immigration and Naturalization Service, the predecessor to the Department of Homeland Security, over its treatment of migrant children. It took 12 years of litigation and negotiation to reach the final agreement in 1997. The settlement was painstakingly crafted by immigrant advocates and government lawyers and has endured through Republican and Democratic administrations.
Getting rid of the Flores settlement would allow the government to lock children up for as long as their immigration cases take to resolve. This is chilling and simply inhumane, and not just because detention centers have repeatedly been found to be crowded, dirty and unsafe. Just this summer, DHS’s own inspector general found conditions at migrant detention centers to be “an immediate risk to the health and safety” of detainees.
Beyond that, doctors and child welfare experts are unanimous in their conclusion that imprisoning children harms their physical, emotional and psychological development. At least six migrant children have died in the Trump administration’s custody. Why would anyone want to place kids in detention for longer periods of time?
<img alt=”Tragic father-daughter photo is a moral stain on Trump&#39;s America” class=”media__image” src=”//cdn.cnn.com/cnnnext/dam/assets/190625182031-01-father-daughter-border-drowning-large-169.jpg”>
Replacing Flores would also amount to a logistical nightmare. The US has three family detention centers with a combined capacity of about 3,000. Contrast that with the roughly 432,000 MEMBERS OF “family units” arrested at the border between October and July, according to Customs and Border Protection. It defies reality to think that the administration could possibly come up with safe places to house such large numbers of people for long periods of time.
Instead they should be screened and processed in a timely manner, then released to family members or sponsors. The vast majority of children and families seeking asylum show up for their court dates when they receive appropriate support, like the kind they received through the Ice Family Case Management Program. Yet the Trump administration abruptly terminated this program in June 2017, indicating a lack of good faith in ensuring that migrants receive proper assistance and guidance with their immigration cases.
“No child should be a pawn in a scheme to manipulate our immigration system,” said McAleenan. He’s right. But it is the Trump administration that is using children as pawns to further its xenophobic agenda. Central Americans have the legal right to apply for asylum, and families should not face indefinite detention for exercising this right.
The administration’s new rule is sure to face significant legal challenges. In fact, a federal court judge recently affirmed that using detention as a deterrent to seeking asylum is an unconstitutional violation of due process.
Trump’s attack on the Flores settlement is an attack on children. His administration’s lack of regard for the care and well-being of migrant kids is a betrayal of American values of fairness and compassion.
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Reyes “hits the nail on the head” here:
Instead they should be screened and processed in a timely manner, then released to family members or sponsors. The vast majority of children and families seeking asylum show up for their court dates when they receive appropriate support, like the kind they received through the Ice Family Case Management Program. Yet the Trump administration abruptly terminated this program in June 2017, indicating a lack of good faith in ensuring that migrants receive proper assistance and guidance with their immigration cases.
“No child should be a pawn in a scheme to manipulate our immigration system,” said McAleenan. He’s right. But it is the Trump administration that is using children as pawns to further its xenophobic agenda. Central Americans have the legal right to apply for asylum, and families should not face indefinite detention for exercising this right.
With all of their cruel and wasteful gimmicks, schemes, and illegal actions, the one thing the Trump Administration has been unwilling to do is just follow existing law:Allow asylum applicants of all nationalities to be fairly and timely processed through the existing system under the law as it existed before the Trump Administration twisted it for the specific purpose of discriminating against legitimate asylum seekers. Then, we’d all finally know whether or not the individuals fleeing the Northern Triangle are “refugees” or something else. But, the Trump Administration won’t allow that to happen because it fears the answer.
Moreover, we should always keep in mind that even those who don’t meet the highly technical international definition of “refugee” might still be in real danger of harm or death upon return. They consequently could be strong candidates for some other type of temporary humanitarian protection (e.g., TPS, extended voluntary departure, prosecutorial discretion) short of asylum.
Also, as Reyes correctly points out, to maintain that a 20 year old consent decree in Flores, carefully developed and agreed upon among the Government, advocacy groups, and the U.S. District Judge to implement “best practices” in lieu of having the Judge unilaterally force the Government to take corrective action to meet basic constitutional standards, is the cause of a continuing Central American migration that has been happening to some extent or another over the past four decades, is beyond absurd. Indeed, the Government undoubtedly entered into the Flores consent decree to save itself from what almost certainly would have been a major litigation defeat on the merits and a public judicial rebuke of their unconstitutional treatment of minor children (which the Solicitor General probably would have declained to appeal to the 9th Circuit).
Only someone as disingenuous and subservient to Trump as “Big Mac With Lies” could possibly put forth such a ridiculously bogus theory in public with a straight face. Judge Gee should hold Big Mac and the rest of his White Nationalist restrictionist gang at DHS, DOJ, and the White House in contempt of court for even putting forth such a pack of lies (but, she won’t).
Stand up against the Trump Administration’s cruel and cowardly attack on children and families. Join the New Due Process Army and the daily ongoing effort to force our Government to follow the law and provide full Due Process for all!
Federal Agencies Have Been Sending Employees Links To White Nationalist And Conspiracy Websites For Months
A BuzzFeed News investigation found that an arm of the Justice Department and the Department of Labor have shared stories from VDare, a white nationalist publication, with federal employees on multiple occasions over the last two years.
Hamed Aleaziz
BuzzFeed News Reporter
Ryan Mac
BuzzFeed News Reporter
Jeremy Singer-Vine
BuzzFeed News Reporter
Posted on August 23, 2019, at 7:15 p.m. ET
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Leah Millis / Reuters
U.S. Attorney General William Barr
An arm of the Justice Department regularly sent summaries and links to articles from an online white nationalist publication over the last year, a BuzzFeed News investigation has found. In addition, similar newsletters sent to the Labor Department, ICE, HUD, and the Department of Homeland Security included links and content from hyperpartisan and conspiracy-oriented publishers.
In daily bulletins about media coverage for the department’s Executive Office for Immigration Review, which runs the nation’s immigration courts, a government contractor sometimes included links to VDare, an anti-Semitic and racist site whose editor who has claimed that American culture is under threat from nonwhite peoples. That contractor, a Dade City, Florida–based company called TechMIS, also compiles newsletters for other agencies, including the Department of Labor, US Immigration and Customs Enforcement, and the Office of Housing and Urban Development.
While these newsletters typically shared articles from local and mainstream national news outlets — including BuzzFeed News — they also regularly delivered content from partisan publications touting anti-immigration rhetoric and conspiracy theories. Among these publications: the Western Journal, a hyperpartisan publisher whose founder once questioned if then-presidential candidate Barack Obama was Muslim, and the Epoch Times, a newspaper associated with the Chinese Falun Gong movement and whose related media properties have backed QAnon, a conspiracy theory claiming a group of high-ranking officials known as the “Deep State” is subverting President Donald Trump’s goals.
On Thursday, BuzzFeed News reported that an immigration judges union sent a letter of complaint to EOIR for its inclusion in an August newsletter of a VDare blog post that attacked its members with anti-Semitic slurs. After publication of that story, an EOIR press secretary said that the Department of Justice “condemns Anti-Semitism in the strongest terms” and that the post should not have been included. A former senior DOJ official said that the email in question was “generated by a third-party vendor that utilizes keyword searches to produce news clippings for staff. It is not reviewed or approved by staff before it is transmitted.”
“That’s absolutely incorrect,” said TechMIS CEO Steven Mains, adding that EOIR was the most specific and particular of the company’s clients. The agency’s staff would review its work “down to misspellings” if there was anything wrong before sending, he said.
A cursory review of EOIR newsletters by BuzzFeed News found two more mentions of VDare articles; Mains confirmed those and noted there were four others, saying that VDare had been included on seven occasions out of about 20,000 links and articles sent from September 2018, when TechMIS’s relationship with the organization began.
“These discoveries are deeply disturbing,” said Becca Lewis, a research affiliate at Data & Society, who studies online radicalization. “Unfortunately, they mark a continuation of a long history in which government agencies, and particularly law enforcement agencies, have promoted and enforced white supremacist and racist agendas. This also unfortunately shows that many white supremacist and far-right publications that seem to be on the ‘fringes’ of society actually have huge mainstream influence and impact.”
“Many white supremacist and far-right publications that seem to be on the ‘fringes’ of society actually have huge mainstream influence and impact.”
On Friday afternoon, immigration court employees were informed that they would no longer receive the briefing and were told to subscribe to a DOJ-wide briefing if they were interested. This instruction was sent hours after BuzzFeed News reached out to DOJ officials for comment on the discovery of the additional VDare links.
“After review of our daily news aggregation emails, we have determined that the sampling was over inclusive and contained non-news sources,” EOIR spokesperson Kathryn Mattingly said in a statement. “EOIR will no longer be distributing a daily news briefing to its staff. EOIR strongly condemns anti-Semitism and white nationalism. Those hateful beliefs do not reflect the views of EOIR employees and the Department of Justice.”
She aded that EOIR would not be renewing its contract with TechMIS.
One immigration court employee told BuzzFeed News they perceived a shift in the news sources included in their emailed media briefings after Trump took office.
“It shows an increasing effort to politically charge the perspective of immigration judges who are being tasked with being neutral judges who apply the law,” said the employee, who was not authorized to speak on the matter publicly. “The administration has been taking steps to make the court a political weapon in various ways, some big, some small, this is just one example.”
BuzzFeed News found that the Department of Labor also linked to VDare in a February 2017 newsletter. Daily bulletins for EOIR, the Labor Department, ICE, HUD, and the Department of Homeland Security included links from the Western Journal and Epoch Times. Links to the New American — the magazine of the John Birch Society, a far-right group that pushed conspiracy theories that Obama wasn’t born in the US — were also in some of those newsletters.
Mains said that TechMIS uses a combination of automated systems and human editors to find stories around certain keywords that are relevant to each agency. He noted that his company was “not chartered in any way to censor the news” and had not heard of VDare until Thursday when he was asked by EOIR to no longer include the white nationalist site on digests moving forward.
“We presented the news — the entire universe of news,” he told BuzzFeed News on Friday. “Including a link did not mean there was in any way an endorsement of anything that was in there. There was stuff from the left, far left, right, far right.”
Among other publications included in the newsletters were the Washington Post, New York Times, HuffPost, the Intercept, Fox News, Breitbart News, Daily Caller, and Daily Wire. Of the fringe and conspiracy sites, the Epoch Times was by far cited the most number of times. BuzzFeed News found citations of the publication in more than 120 EOIR newsletters.
TechMIS / Via TechMIS
An EOIR newsletter from July 24 included this summary and link to a VDare post. The linked story includes a mention of a “zerg rush” of immigrants coming across the border.
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In one VDare post sent to EOIR employees in July, a blogger wrote that the “deep state” had scuttled previous efforts to enforce fast-track deportations. The post includes a mention of a “zerg rush” of immigrants coming across the border.
“We will see if Kevin McAleenan will implement this expansion. I think not. Sabotage is his specialty,” the piece concludes. The sentence links to posts about McAleenan that feature anti-trans comments about the acting DHS secretary, describing him as a “Ladyboy DACA, #DeepState operative” and “Tranny Kirstjen Nielsen,” a derogatory reference to the recently departed Homeland secretary.
In a story posted on New American and circulated to ICE staffers earlier this month, an author references an “invasion” of immigrants at the border. “Border patrol officials have said as much for months, but House and Senate Democrats, who hope to keep illegals coming in to swell the ranks of the party, have ignored them,” the post read.
Shawn Neudauer, a spokesperson for ICE, said the agency sends the clippings to a subset of its employees. The news briefing is delivered through an email service to the employees after the agency receives the brief from the contractor. He said the agency scans the briefings, which also include links to mainstream news outlets, as a way to understand how they are being written about online.
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“Most federal agencies monitor news and clipping services capture headlines from web-published stories,” he said in an email. “It says absolutely nothing about the value of the material received — only noting whatever source said whatever ‘thing’ — which happens to be fairly useful in combating false narratives about the critical work out special agents and officers do every day.”
When asked about publications including the Epoch Times, the New American, and the Western Journal, Mains said he had never heard of or read them. TechMIS, he said, had been working with government agencies since 2012, and while most newsletters are sent to agencies without review, the EOIR staff is more “hands on” than the rest.
“We’re here to react to the needs of the government,” Mains added.
In April, a VDare story about the “border asylum crisis” found its way into the EOIR newsletter. Railing on the current state of the practice of asylum in the US, it also excerpted part of another article that mentioned the “deep state” for open borders.
“Like I say, I hope somebody in the administration is reading this,” the author wrote.
Ryan Mac is a senior tech reporter for BuzzFeed News and is based in San Francisco.
Contact Ryan Mac at ryan.mac@buzzfeed.com.
Jeremy Singer-Vine is the data editor for the BuzzFeed News investigative unit and is based in New York. His secure PGP fingerprint is 9980 A273 CA46 DF22 4358 C196 CEFC 41B7 DEA9 06DC
Contact Jeremy Singer-Vine at jeremy.singer-vine@buzzfeed.com.
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Yup, no surprises here! Of course, they know what‘s in their “clips!“ If they didn’t, it would be negligent contract administration. And, it’s no coincidence that vile attacks on union leaders occur as Barr moves to “decertify” the Judges’ Union.Are they going to post material from Antifa. No way? Tweets from “The Squad” criticizing Trump? Not likely; that could be career threatening. DOJ’s dishonesty — and Barr’s cowardice — says it all!
BREAKING: STATEMENT BY IMMIGRATION JUDGES UNION ON MAJOR CHANGE ANNOUNCED TO IMMIGRATION COURTS
Statement by the Hon. Ashley Tabaddor, Pres. of the National Association of Immigration Law Judges
In an unprecedented attempt at agency overreach to dismantle the Immigration Court, the Department of Justice, Executive Office for Immigration Review (EOIR) today published a new interim rule, effective next Monday, which takes steps to dismantle the Immigration Court system. DOJ’s action ends any transparency and assurance of independent decision making over individual cases.
By collapsing the policymaking role with the adjudication role into a single individual, the Director of EOIR, an unconfirmed political appointee, the Immigration Court system has effectively been dismantled,” said Ashley Tabaddor, President of the National Association of Immigration Judges.
The new rule is a wolf in sheep’s clothing. While couched in bureaucratic language, the impact of this regulation is to substitute the policy directives of a single political appointee over the legal analysis of non-political, independent adjudicators. The creation of a mini-Attorney General in the EOIR’s Director, who
is a political appointee, not confirmed by the Senate and currently not empowered to
adjudicate cases, will in effect abolish the separation of functions where the Attorney General’s duties as a law enforcement agent are distinct and separate from his adjudicatory duties. The unprecedented creation of an Office of Policy within EOIR under the Director’s authority, designed to formulate, coordinate, and implement the executive branch’s immigration law enforcement policies
combined with the Director’s new direct adjudicatory role over individual cases, removes any semblance of an independent, non-political court system which ensures due process rather than political expediency.
Furthermore, this bold-faced power-grab undermines oversight by the public through the established notice and comment procedure.
The National Association of Immigration Judges received notice of this action only today when the press was advised. We are currently studying the regulation carefully to provide a more detailed analysis in the days ahead.
Will Congress and the Article IIIs stand up to this grotesque abuse and prevent the DOJ from destroying democracy. Or, will impotent legislators and “go along to get along” Article III Judges continue to look the other way as a system driven by racist authoritarianism eats us up!
Björklunden enjoys a loyal following among Door County residents and visitors, as well as Lawrence University alumni, parents and friends. The Boynton Society was formed to celebrate Björklunden and to secure financial backing for its programs. Those who support the mission of Björklunden make the Lawrence University Student Seminar programs possible for over 650 students each year as well as provide opportunities for the Lawrence University Conservatory of Music to perform in Door County.
Many Boynton Society members have attended summer seminars or spent time at the lodge during their years at Lawrence. Anyone who has been to Björklunden would agree that the experience can be life changing. Boynton Society members help to make sure that visitors of all ages will be able to enjoy the treasure that awaits as they venture into the “birch forest by the water” for years to come.
Who Chairs the Boynton Society:
Jone (LU’72) & Jeff (LU’70) Riester Co-Chairs, The Boynton Society
PROGRAM NOTE: Jeff and I were in the same class at LU, attended the Lawrence Campus in Boennigheim together, overlapped at Wisconsin Law, and lived to tell about it.
Who were the Boyntons and how did they relate to Lawrence University:
The Björklunden Tradition
Björklunden* vid Sjön, Swedish for “Birch Grove by the Lake” is a 425-acre estate on the Lake Michigan shore just south of Baileys Harbor in picturesque Door County. A place of great beauty and serenity, the property includes meadows, woods, and more than a mile of unspoiled waterfront.
Björklunden was bequeathed to Lawrence University in 1963 by Donald and Winifred Boynton of Highland Park, Illinois. The Boyntons made the gift with the understanding that Björklunden would be preserved in a way that would ensure its legacy as a place of peace and contemplation. Winifred Boynton captured the enduring spirit of Björklunden when she said of her beloved summer home: “Far removed from confusion and aggression, it offers a sanctuary for all.”
Since 1980, Lawrence has sponsored a series of adult continuing-education seminars at Björklunden, interrupted only by a 1993 fire that destroyed the estate’s main lodge. In 1996, construction was completed on a new and larger facility, and the Björklunden Seminars resumed. The magnificent lodge and idyllic setting create a peaceful learning environment. Seminars address topics in the arts, music, religion, history, drama, nature, and more. Seminar participants may enjoy a relaxing week’s stay at the lodge or are welcome to commute from the area.
Throughout the academic year, groups of Lawrence students and faculty come to Björklunden for weekend seminars and retreats. Each student at Lawrence has the opportunity to attend a student seminar at Björklunden at least once during their studies. Student seminars provide the opportunity to explore exciting themes and issues and the time and the environment in which to embrace those ideas and their consequences. The magic of a Björklunden weekend is in the connection between thought and reflection. Making that connection fulfills one ideal of a liberal education.
The two-story Björklunden lodge is a magnificent 37,000 square-foot structure containing a great room, muti-purpose and seminar rooms, dining room and kitchen, as well as 22 guest rooms. The lodge accommodates a wide variety of seminars, meetings, conferences, receptions, family gatherings, musical programs and other special events and is available for use throughout the year. In addition to the main building, the Björklunden estate also includes a small wooden chapel built in a late 12-century Norwegian stave church (stavkirke) style, handcrafted by the Boyntons between 1939 and 1947.
What does the hand-crafted Boynton chapel look like today:
Boynton Chapel BjorklundenInside the Boynton Chapel BjorklundenInside the Boynton Chapel BjorklundenInside the Boynton Chapel Bjorklunden
What did I say in my Lecture:
NOTE: This written version contains “bonus material” that was cut from the live presentaton in the interests of time.
“INTO THE MAELSTROM” — UNDERSTANDING AMERICAN IMMIGRATION IN THE AGE OF TRUMP
BOYNTON SOCIETY LECTURE
LAWRNCE UNIVERSITY, BJORKLUNDEN, CAMPUS
BAILEY’S HARBOR, WISCONSIN
August 10, 2019
Greetings, and thank you so much for coming out to listen this beautiful afternoon on a topic that has consumed my post-Lawrence professional life: American Immigration.
Whether you realize it or not, immigration shapes the lives of each of us in this room. It will also determine the future of our children, grandchildren, and following generations. Will they continue to be part of a vibrant democratic republic, valuing human dignity and the rule of law? Or, will they be swept into the maelstrom as our beloved nation disintegrates into a cruel, selfish, White Nationalist kleptocracy, mocking and trampling most of the principles that we as “liberal artists” grew up holding dear.
“The Maelstrom” Bjorklunden“The Maelstrom”
Many of you have thought about this before in some form or another. Indeed, that might be why you are here this afternoon, rather than outside frolicking in the sunlight. But, for any who don’t recognize the cosmic importance of migration in today’s society, in the words of noted scholar and country music superstar Toby Keith, “It’s me, baby, with your wake-up call.”
040601-N-8861F-003 Naval Support Activity Naples, Italy (Jun. 1, 2004) – Country singer Toby Keith sings at a recent United Service Organization (USO) sponsored concert held at Naval Support Activity, Naples, support site in Gricignano. Keith, joined by rock legend Ted Nugent will also be traveling to Germany, Kosovo and the Persian Gulf during the tour. U.S. Navy photo by Photographer’s Mate 2nd Class Lenny Francioni (RELEASED)
For, make no mistake about it, civilization is undergoing an existential crisis. Western liberal democracy, the rule of law, scientific truth, humanism, and our Constitutional guarantees of Due Process of law for all are under vicious attack. Evil leaders who revel in their anti-intellectualism and pseudo-science have shrewdly harnessed and channeled the powerful cross currents of hate, bias, xenophobia, fear, resentment, greed, selfishness, anti-intellectualism, racism, and knowingly false narratives to advance their vitriolic program of White Nationalist authoritarianism, targeting directly our cherished democratic institutions. And, their jaundiced and untruthful view of American immigration is leading the way toward their dark and perverted view of America’s future.
As fellow members of the Boynton society, I assume that all of you are familiar with our beautiful chapel, painstakingly hand-constructed by Winifred Boynton and her husband Donald – a true labor of love, optimism, humanitarianism, and respect for future generations. Here are the words of Winifred Boynton:
Boynton Chapel Bjorklunden Door County, WI
During those years the chapel was in the building, the world was being torn apart by the hatred and fighting of a war and we realized the tremendous need for centers of peace and Christian love for our fellow man. . . . We found ourselves selecting moments of great joy for the large murals. And, the decision to dedicate the chapel to peace was the natural culmination. [Ruth Morton Miller, Faith Built a Chapel, Wisconsin Trails, Summer 1962, at 19, 21-22]
Donald and Winifred Boynton
If Winifred were among us today, in body as well as spirit, she would approve of the learning, humane values, and concern for our fellow man fostered through our seminars this week and this program.
For those of you who weren’t able to join us this week, here are some of the “ripped from the headlines” items that we discussed in the American Immigration and Culture Seminar led by my good friend, the amazing Jennifer Esperanza, Professor of Cultural Anthropology at Beloit College, herself a first generation American whose family came from the Philippines, and me.
Professor Jennifer Esperanza Beloit College Anthropology Department
From Sunday’s Wisconsin State Journal: “Trump’s stamp on immigration courts; recent trend in judges is former military and ICE attorneys” and “Swamped courts fast-tracking family cases: Speeding up hearings aims to prevent migrant families from setting down roots while they wait to find out whether they qualify for asylum.”
From Monday’s Los Angeles Times: “’As American as any child:” Defunct citizenship query may still lead to Latino undercount.”
From Wednesday’s El Paso Times: “Mr. President, the hatred of the El Paso shooting didn’t come from our city: When you visit today, you will see El Paso in the agony of our mourning. You will also see El Paso at its finest.”
From Thursday’s New York Times: “Climate Change Threatens the World’s Food Supply, United Nations Warns.”
From Thursday’s Huffington Post: “Children Left without Parents, Communities ‘Scared to Death’ After Massive ICE Raids.”
From Friday’s Washington Post: “The poultry industry recruited them. Now ICE raids are devastating their communities: How immigrants established vibrant communities in the rural South over a quarter century.”
And, finally, check these out from today’s Washington Post: “When they filed their asylum claim, they were told to wait in Mexico – where they say they were kidnapped;” and “ICE raids target workers, but few firms are charged;” and “Pope Francis again warns against nationalism, says recent speeches sound like ‘Hitler in 1934.’”
Just before I came to deliver this lecture, I was on the phone with Christina Goldbaum of the New York Times who is writing an article on the Administration’s efforts to “break” the Immigration Judges’ union (of which I am a retired member) which will appear tomorrow.
Christina Goldbaum Immigration Reporter NY Times
Now, this is when, “in former lives,” I used to give my comprehensive disclaimer providing “plausible deniability” for everyone in the Immigration Court System if I happened to say anything inconvenient or controversial – in other words, if I spoke too much truth. But, now that I’m retired, we can skip that part.
IMPORTANT WARNING ENTERING NO BS ZONE
Nevertheless, I do want to hold Lawrence, the Boynton Society, Mark, Alex, Kim, Jeff & Joanie, you folks, and anyone else of any importance whatsoever, harmless for my remarks this afternoon, for which I take full responsibility. No party line, no bureaucratic doublespeak, no “namby-pamby” academic platitudes, no BS. Just the truth, the whole truth, and nothing but the truth, of course as I see it, which isn’t necessarily the way everyone sees it. But, “different strokes” is, and always has been, an integral part of the “liberal arts experience” here at Lawrence.
But, that’s not all folks! Because todayis Saturday, this is Bjorklunden, and youare such a great audience, I’m giving you my absolute, unconditional, money-back guarantee that thistalk will be completely freefrom computer-generated slides, power points, or any other type of distracting modern technology that might interfere with your total comprehension or listening enjoyment. In other words, I am the “power point” of this presentation.
Executive Summary
I will provide an overview and critique of US immigration and asylum policies from the perspective of my 46 years as a lawyer, in both the public and private sectors, public servant, senior executive, trial and appellate judge, educator, and most recently, unapologetic “rabble rouser” defending Due Process and judicial independence.
I will offer a description of the US immigration system by positing different categories of membership: full members of the “club” (US citizens); “associate members” (lawful permanent residents, refugees and asylees); “friends” (non-immigrants and holders of temporary status); and, persons outside the club (the undocumented). I will describe the legal framework that applies to these distinct populations and recent developments in federal law and policy that relate to them. I will also mention some cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and Constitutional rights that extend to non-citizens.
Click this link to continue with the full version of the speech:
Three members of the fantastic Lawrence undergraduate student staff who attended the lecture told me afterward “We’re joining your ‘New Due Process Army.’” Thus, the “Brjorklunden Brigade of the NDPA” is born!
What did the Society members do after the “serious stuff” was over?
Partied, of course:
Who runs Bjorklunden?
Mark Breseman (LU ’78) Executive DirectorKim Eckstein Operations ManagerAlex Baldschun Assistant DirectorJeff Campbell Head ChefMark Franke General Maintenance MechanicLynda Pietruszka Staff Assistant/Weekend Manager
How can you join the Boynton Society or participate in future programs at Bjorklunden (you to not have to be a Lawrence University graduate, student, or otherwise affiliated with the University)?
AG William Barr promotes immigration judges with high asylum denial rates
WASHINGTON — The Trump administration has promoted six judges to the immigration appeals court that sets binding policy for deportation cases — all whom have high rates of denying immigrants’ asylum claims.
The six come from courts that have higher asylum-denial rates than the national average, including two from a court that has drawn complaints of unfair proceedings from immigration attorneys and advocates. A third has a long history of denying asylum to domestic violence victims, something the Justice Department has also sought to do.
The new appeals judges, who will now make up more than a quarter of the appellate board, were appointed as the administration works to speed up the immigration courts and narrow migrants’ use of asylum cases to come to the U.S. The six new appointees were sworn in Friday.
The hires are in a new role, in which judges will be allowed to continue serving at any immigration court in the country rather than having to move to suburban Falls Church, Va., where the appeals board’s headquarters are. The new appeals judges will also be allowed to serve as fill-in lower court immigration judges. Critics had suspected the Justice Department, which oversees the immigration courts, created the new positions to pack the board with judges from courts with high rates of denying immigrants’ claims, who may otherwise not have wanted to move to D.C.
The board serves as the appellate body for the immigration court system, an entity separate from the federal courts.
As in the federal system, the immigration board has the power to overrule lower court decisions with three-judge panels. By a majority vote of all its 21 members, it can make those rulings binding on the nation’s nearly 400 immigration judges. Recently, Barr published a new regulation giving himself the power to make any appellate decision binding as well.
By law, the Justice Department is barred from considering political leanings when hiring judges. Agency officials say judges are selected based only on their qualifications for the job, and that their history of rulings is not taken into account.
According to data tracked by Syracuse University from 2013 through 2018, all the judges promoted Friday have records of denying asylum at much higher rates than immigration judges nationally. The Justice Department has in the past questioned Syracuse’s methodology, but does not provide statistics of its own.
Two of the new appeals judges were promoted by Barr from the Atlanta immigration court, which has one of the highest rates of asylum claim denials in the country. The court rejected 95.3% of claims from 2013 to 2018, compared with a national average of 57.6%, Syracuse found.
One of the two new appeals judges from Atlanta, William Cassidy, had a rejection rate of 95.8%, 22nd highest in the country.
Cassidy was also the subject of 11 complaints from immigration attorneys from 2010-2013, according to material obtained by the American Immigration Lawyers Association through a Freedom of Information Act lawsuit. That number of complaints was more than roughly 95% of all other immigration judges in that period, according to information from the lawsuit. Five of the 11 resulted in Cassidy being counseled by a superior on proper judicial behavior.
Also promoted by Barr from the Atlanta court was Earle Wilson, who denied 98.1% of asylum claims from 2013 to 2018, according to Syracuse. That was more than all but five immigration judges in the U.S.
Wilson and Cassidy were also named in two complaints filed by the Southern Poverty Law Center, a civil rights group, in 2017 and 2018 that argued the Atlanta court was treating immigrants unfairly. The complaints said Wilson and Cassidy behaved in an intimidating fashion toward immigrants and their advocates.
It is not clear whether the Justice Department has responded to those complaints. The department said Friday it does not discuss personnel matters.
The other new appellate judges are:
• Keith Hunsucker, who has spent most of his time on the bench at the immigration court at the Port Isabel Detention Center in Texas. While there, he denied 81.6% of asylum cases, consistent with his court’s 81.1% average. Hunsucker is now in Cleveland.
• Deborah Goodwin, appointed from the Miami immigration court. She began hearing cases in 2017, and through last year had a denial rate of 89.4%, above her court’s average of 79.6% in the 2013 to 2018 time frame measured by Syracuse.
• Stephanie Gorman, promoted from the Houston immigration court. She began hearing cases in 2017 and has an 86.9% asylum denial rate, slightly below her court’s 89.3% average.
• Stuart Couch, who was appointed from Charlotte, N.C., denied 92.1% of asylum claims from 2013 to 2018. That was above his court’s average of 88.2%.
Couch also authored a 2017 ruling denying asylum to a Salvadoran woman who was physically and emotionally abused and raped by her ex-husband, a decision that the Board of Immigration Appeals reversed. It was that appellate decision that Sessions overturned to align the law more closely with Couch’s interpretation, saying domestic violence was largely not grounds for asylum. A federal judge has blocked that ruling for now.
Couch’s original decision was one of 10 domestic violence-related cases in 2017 in which the Board of Immigration Appeals found his rulings were “clearly erroneous.” In all 10, Couch rejected the claims of Central American women who had been beaten, raped and otherwise abused by their husbands or partners. The cases were made public as part of a Freedom of Information Act request by immigration attorney Bryan Johnson.
The Justice Department stood behind all the judges.
“DOJ doesn’t track asylum approval and denial rates for individual immigration judges, and (Syracuse) uses its own methodologies in interpreting the data it receives, resulting in conclusions that we cannot verify,” a spokesperson said in a statement. “Collectively these judges combined, have nearly 120 years of immigration law combined, through multiple administrations. Advocates that attack their integrity and professionalism only undermine the entire system.”
Immigration attorneys fear the hires are part of an effort by the Trump administration to skew the courts against immigrants, who face deportation if their claims are denied.
“The board’s primary function is to ensure rule of law and impartiality, yet the department cherry-picked judges from the harshest jurisdictions with the lowest asylum grant rates in the nation,” said Laura Lynch, senior policy counsel for the American Immigration Lawyers Association. “When we’re talking about asylum cases, these decisions are life or death for those seeking protection.”
Lynch’s group, along with the American Bar Association and national union for immigration judges, have called for the immigration courts to be removed from the Justice Department and made independent. Rep. Zoe Lofgren, D-San Jose, has pledged to pursue legislation that would do so through the Judiciary subcommittee on immigration she chairs in the House.
How many refugees will die or be subjected to additional torture and persecution because of thoroughly biased judges and a corrupt “judicial” system controlled by political hacks like Barr. Will Congress and the Article IIIs ever step in and restore some semblance of Due Process? Unless and until they do, the “blood of the innocents” will be on their hands.
Meanwhile, the complicit/complacent Article IIIs who have let this situation get out of control can look forward to being flooded with petitions for review, because the New Due Process Army will continue to fight this unconstitutional, fundamentally unfair, and evil perversion of American justice!
The idea that six Judges with asylum denial rates astronomically above the national average of 57.1% were the “best qualified” for these appellate jobs is simply absurd. Indeed, probably all of us in the Roundtable of Former Judges know of much better judicial candidates who were passed over so that Barr could install his “Death Squad.”
As Tal points out, unless piling up bar complaints, being cited by the public for rudeness, being reversed by their BIA, and denying an usually high number of asylum claims are among the “quality ranking factors” for these jobs, it’s hard to see how several of these judges would be considered even minimally qualified for promotion, let alone “best qualified.” It seems that a Congressional investigation into the selection process would be well warranted, including a look at the qualifications of candidates who were passed over.
Human lives are being trivialized by this White Nationalist regime and its enablers.
PWS “QUICK TAKES” ON EOIR INTERIM REORGANIZATION RULE
Enhances role of relatively new “Office of Policy” (“OP”)
Remarkable because as a quasi-judicial court system, EOIR really is not supposed to be “making policy” except through BIA precedents
Shows Trump Administration’s “weaponization” of EOIR as a means of implementing restrictionist policies by precedent decision without going through legislation or rule making
Enhances policy role of Director, since Director controls OP
OP primary role appears to be to ensure that EOIR functions as an adjunct of DHS Enforcement and that any adjudication trends that enhance Due Process or vindicate Immigrants rights are quickly identified so that they can be wiped out by precedents or policy changes
Diminishes role of Office of Legal Assistance Programs (“OLAP”)
OLAP’s primary mission is to enhance and ensure maximum representation for migrants in Removal proceedings
That mission directly conflicted with the Administration’s use of EOIR as a “Deportation Railroad”
OLAP is eradicated from the regulations and organizational chart and buried deep in the bowels of OP
Look for OLAP to be slowly strangled and its functions in assisting migrants and providing them information and self-help materials in going through the Immigraton Court process to be reduced or eliminated
OP can be expected to concentrate instead on how to limit migrants’ access to pro bono counsel and to make practice before the Immigration Courts as non-user-friendly as possible to discourage representation and expedite removals of clueless unrepresented migrants
Disingenuously designates BIA Members as “Appellate Immigration Judges”
As their authority to act as fair, impartial, and independent adjudicators is diminished to lowest level in BIA history, “bogus retitling” appears intended to create an “appearance” of enhanced status of “AG’s patsies” before Article III Appellate Courts in support of DOJ’s arguments for high degree of deference and diminished scrutiny from Article IIIs
Uses administrative gobbledygook and slight of hand to give the Director individual case adjudication authority in certain instances where BIA’s “Mickey Mouse” adjudication deadlines are not met
Back in 1995 (when I was appointed) the DOJ separated the functions of the Director and the BIA Chair, which until then had been merged in the same position
Result of a perceived conflict of interest in having Director directly responsible to the AG while also having quasi-judicial responsibilities as BIA Chair
Beginning to “re-merge” adjudication with administration reflects Trump DOJ’s disregard of ethical considerations in immigration adjudication and intent to use EOIR as enhanced enforcement tool
Remarkably, the Director could actually issue precedent decisions in some instances
Look for the Director over time to reinsert himself in the adjudicative activities of EOIR for the purpose of insuring subservience to Administrations’s political enforcement priorities
Not clear whether the current authority to refer ”overdue” BIA cases has even been utilized (but, if it hasn’t been, why would the AG fear potentially being “overburdened” with such non-existent referrals and find it necessary to make this change?)
The Justice Department Sent Immigration Judges A White Nationalist Blog Post With Anti-Semitic Attacks
BuzzFeed News Reporter
Attorney General William Barr
An email sent from the Justice Department to all immigration court employees this week included a link to an article posted on a white nationalist website that “ directly attacks sitting immigration judges with racial and ethnically tinged slurs,” according to a letter sent by an immigration judges union and obtained by BuzzFeed News.
According to the National Association of Immigration Judges, the Justice Department’s Executive Office for Immigration Review (EOIR) sent court employees a link to a blog post from VDare, a white nationalist website, in its morning news briefing earlier this week that included anti-Semitic attacks on judges.
The briefings are sent to court employees every weekday and include links to various immigration news items. BuzzFeed News confirmed the link to a blog post was sent to immigration court employees Monday. The post detailed a recent move by the Justice Department to decertify the immigration judges union.
A letter Thursday from union chief Ashley Tabaddor to James McHenry, the director of the Justice Department’s EOIR, said the link to the VDare post angered many judges.
“The post features links and content that directly attacks sitting immigration judges with racial and ethnically tinged slurs and the label ‘Kritarch.’ The reference to Kritarch in a negative tone is deeply offensive and Anti-Semitic,” wrote Tabaddor. The VDare post includes pictures of judges with the term “kritarch” preceding their names.
Tabaddor said the term kritarchy is a reference to ancient Israel during a time of rule by a system of judges.
“VDare’s use of the term in a pejorative manner casts Jewish history in a negative light as an Anti-Semitic trope of Jews seeking power and control,” she wrote.
Tabaddor called on McHenry to take immediate action over the distribution of white nationalist content.
“Publication and dissemination of a white supremacist, anti-semitic website throughout the EOIR is antithetical to the goals and ideals of the Department of Justice,” she wrote. The court, Tabaddor wrote, should immediately withdraw the email and issue an apology to all immigration judges, including those mentioned in the post.
“Separately, EOIR should take all appropriate safety and security measures for all judges given the tone and tenor of this posting,” she wrote.
After publication of this article, a DOJ spokesperson told BuzzFeed News the email briefing was compiled by a contractor and should not have included a link to the VDare post.
“The daily EOIR morning news briefings are compiled by a contractor and the blog post should not have been included,” the spokesperson said.
EOIR Assistant Press Secretary Kathryn Mattingly told BuzzFeed News that “the daily EOIR morning news briefings are compiled by a contractor and the blog post should not have been included. The Department of Justice condemns Anti-Semitism in the strongest terms.”
A former senior DOJ official said that the email in question was “generated by a third-party vendor that utilizes keyword searches to produce news clippings for staff. It is not reviewed or approved by staff before it is transmitted.”
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So, it’s “mere coincidence” that the two Judges leading the NAIJ’s resistance are specifically targeted with slurs within a few days of the DOJ’s filing of a petition to “decertify” the NAIJ? Not credible!
Coincidence that a White Nationalist racist Administration biased against asylum seekersdistributes White Nationalist hate propaganda directed at Immigration Judges who stand up for Due Process? Unlikely!
No, starting with Trump & Sessions, this Administration has had a long-term love affair with White Supremacist hate groups. It’s no coincidence that acts of violence by White Nationalist domestic terrorists have increased under Trump. While the DOJ and DHS are busy reviving up baseless fear and loathing of foreigners, the real threats to our national security by White Nationalist domestic terrorists, and frankly by the Trump Administration itself, are left unaddressed and not so subtly encouraged.
There are lots of scummy characters involved in the latest assault on Due Process, fundamental fairness, and simple human decency by Trump’s DOJ.
But there is another major enabler at fault here: the unconstitutional and unethical placement of “judges” within a law enforcement agency has been painfully obvious for years.Yet, life tenured Federal Judges have looked the other way as clearly substandard adjudications have emanated from the Immigration Courts under the last three Administrations. Kind of a “who cares” attitude where rights of foreign nationals are involved.
Now, however, as in the Bush II Administration, U.S. citizen judges are being targeted for harassment and career derailment because of their views.
Trump and his henchmen have already made it clear that they will target anyone who fails to roll over for their White Nationalist agenda, judge or not. Myopic Federal Judges who fail to hold the Administration accountable for abuses and to put an end to the “EOIR travesty” might well find themselves on the receiving end of the Administration’s racist hate campaign at some point.Who will stand up for the rights of those unwilling to stand up for others?
(Reuters) – More than 2,000 Central American migrants seeking to settle in the United States have given up and accepted free rides home under a 10-month-old program funded by the U.S. government and run by a United Nations agency, according to a U.N. official.
A migrant child stands inside a shelter in Tijuana, Mexico, July 20, 2019. REUTERS/Carlos Jasso
The “Assisted Voluntary Return” program has paid for buses or flights for 2,170 migrants who either never reached the United States or were detained after crossing the border and then sent to Mexico to await U.S. immigration hearings, according to Christopher Gascon, an official with the U.N.’s International Organization for Migration (IOM).
The $1.65 million program, funded by the U.S. State Department, is raising concerns among immigration advocates who say it could violate a principle under international law against returning asylum seekers to countries where they could face persecution.
The returned migrants have not been interviewed by U.S. asylum officers. But Gascon said his agency screens all participants to ensure they are not seeking U.S. asylum and want to go back.
Gascon, head of the IOM’s Mexico mission, said the program provides a safer and more humane means of return than the migrants could arrange on their own.
The effort here, whose scope and controversial aspects have not been previously reported, is the first by the State Department and UN to target Central American migrants in Mexico on such a large scale. The State Department would not comment on the record about its role.
Gascon said the State Department reached out to the IOM last year as caravans of thousands of Central American migrants traveled through Mexico toward the U.S. border.
U.S. President Donald Trump called the caravans an “invasion” and has made stemming immigration a centerpiece of his administration and 2020 re-election campaign.
Migrant advocates are particularly concerned about 347 people returned by the IOM who had been stuck in Mexico under a controversial Trump administration policy known as the Migrant Protection Protocols (MPP).
Under that policy, which began Jan. 29, some migrants who make it across the U.S.-Mexico border are given a notice to appear in U.S. immigration court, then are then turned back to Mexico to wait the months it can take for their court cases to be resolved. In the past seven months, more than 30,000 migrants have been sent back under MPP, according to U.S. Customs and Border Protection.
(For a graphic on the Migrant Protection Protocols, see reut.rs/2MszcsN)
Advocates say that the migrants often face danger and destitution in Mexican border towns, leaving them no good options.
“How can it be a voluntary decision (to return home) given the conditions they face in Mexico? It’s a choice between two hells,” said Nicolas Palazzo, an attorney with El Paso-based Las Americas Immigrant Advocacy Center.
Besides any danger they might face back home, there is another significant downside to leaving: If migrants do not show up for a U.S. court hearing, they can be ordered deported “in absentia,” reducing their odds of ever being granted refuge in the United States.
AFRAID TO GO, AFRAID TO STAY
Denia Carranza, a 24-year-old Honduran returned to Mexico to await a court hearing set for October, decided instead to board a bus back home last week.
She said she and her 7-year-old son had fled her hometown and a good job at a shrimp packing company after gang members threatened to kill her if she did not deal drugs to fellow employees. She had hoped to apply for U.S. asylum.
But she said she was frightened in Ciudad Juarez – a battleground for drug cartels where the bulk of migrants await their hearings. Also, she had no job and no way to provide for her son.
“I am scared of going back to Honduras. But I am more afraid to stay,” she said.
The U.S.-based nonprofit Human Rights First said it had documented more than 100 violent incidents perpetrated against migrants waiting in Mexico for U.S. court hearings this year, including rape, kidnapping, robbery, assault and police extortion.
The IOM documented 247 deaths of migrants near the US-Mexico border this year through Aug. 15.
In a July 30 letter to the IOM’s Director General, 30 U.S. and international advocacy organizations said they feared the U.N. organization was returning migrants to countries they had fled “out of desperation, not choice, and where they may not fully understand the consequences of failing to appear whenever summoned by a U.S. immigration court.”
There is no way of knowing how many of the migrants who opt to go home with IOM help might have been able to present a successful asylum claim. U.S. courts ultimately deny most such claims brought by Central Americans and the Trump administration has said many are fraudulent.
Migrants who are sent to Mexico under MPP may or may not be seeking U.S. asylum, but they generally have no opportunity to initiate such claims before being sent back across the border. The policy cuts out a traditional asylum screening step in which migrants are interviewed to establish whether they have a “credible fear” of returning home.
Slideshow (35 Images)
SEEING ‘REALITY’
When the U.S. State Department approached IOM last fall, Gascon said, part of the goal was to counter what is saw as misinformation about how easy it was to get into the United States.
IOM set up kiosks at a stadium in Mexico City, which was along the caravan route, and on the U.S.-Mexico border. It also helped spread the word about free rides back in migrant shelters.
“When they saw the reality, some decided to go home,” he said of migrants.
Three quarters of the migrants in the voluntary return program went back to Honduras, a fifth to El Salvador and the rest to Guatemala and Nicaragua, according to IOM figures through July 26 of this year. More than half were “family units” and about 100 were unaccompanied minors. Most of the migrants have been sent back from Mexico, and a small fraction from Guatemala.
The IOM screens all migrants who ask to go home, but those awaiting U.S. hearings in Mexico also undergo an orientation program with Grupo Beta, an arm of Mexico’s National Migration Institute, to ensure migrants understand their options, Gascon said.
So far, Gascon said, two people awaiting U.S. court hearings in Mexico who wanted a ride back were instead referred to the Mexican government to gauge their eligibility for asylum in Mexico.
But advocates said they worried that Grupo Beta is not the best partner for IOM to ensure migrants’ safety.
“Many organizations have documented time and again that Mexican migration officials don’t refer people to (the national refugee office), they don’t register fears of return, and they have even pressured people to withdraw (asylum) claims,” said Kennji Kizuka, a researcher at the nonprofit Human Rights First.
Mexican migration officials did not respond to a request for comment.
More than a dozen migrants awaiting U.S. hearings at the Casa de Migrante shelter in Ciudad Juarez told Reuters the weekly south-bound bus rides held some appeal. Though reluctant to give up on their American dreams, many didn’t have lawyers and saw little prospect for success.
“All that effort we made to get here from Honduras and now we’re going back,” said Angel Estrada, who had hoped to get care in the United States for his 9-year-old son, who has hemophilia. “It’s really sad.”
PHOTO ESSAY: U.S. buys tickets home for Central American migrants – reut.rs/2ZeyOoV
Reporting by Daniel Trotta in Ciudad Juarez, Kristina Cooke in San Francisco and Mica Rosenberg New York; Additional reporting by Julia Love in Ciudad Juarez, Lizbeth Diaz in Tijuana and Stephanie Nebehay in Geneva; Editing by Julie Marquis and Brian Thevenot
Someday, the full tawdry story will be told of how our rich and powerful nation turned its back on vulnerable forced migrants whose countries we helped destroy. And, the anti-Latino racism throughout our Central American policies will be fully exposed.
Until then, thanks to Mica and her colleagues, we are learning about highly questionable programs and expenditures that our Government has tried to hide from public view.
Michelle Hackman Education Reporter Wall Street Journal
Michelle Hackman reports for the WSJ:
WASHINGTON—The Trump administration moved to allow the government to indefinitely detain families crossing the U.S.-Mexico border and supersede a decades-old court settlement that both limits how long migrant children can be held in custody and sets standards for their care.
The new rules are the Republican administration’s latest effort to tighten immigration laws on its own, with Congress long unable to agree on any legal overhaul. Wednesday’s policy change could permit authorities to detain families through the duration of their immigration proceedings, rather than release them or separate children from their detained parents.
Immigration-rights advocates are expected to challenge the rules in federal court, where they have blocked the administration before. A legal challenge would likely keep the policy from taking immediate effect.
Administration officials say the new rules are intended to discourage family members from attempting to cross the border together in the belief that they will gain an advantage in lodging their asylum claims because of the current detention limits for children. “No child should be used as a pawn to scheme our immigration system,” said acting Department of Homeland Security Secretary Kevin McAleenan on Wednesday.
. . . .
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Those with WSJ access can read Michelle’s complete article at the above link.
As Michelle points out, McAleenan and his corrupt DHS flunkies are simply “making it up” as they go along to justify unconstitutional, racist policies intended to target legitimate asylum seekers based on the color of their skin. By continuously doing “in your face” moves, often with little expectation of success in the in the courts, but a great expectation of rallying racial animosity for political gain, Big Mac & Co. are misusing their access to Federal Courts, constantly violating their oaths of office, and making a mincemeat out of Federal and State professional ethics rules.
Contrary to Big Mac’s false blather, the “solution” to the exodus of refugees is straightforward and not prohibitively expensive:
Release them to community placements;
Help them find pro bono lawyers;
Ask judges to schedule court cases at the earliest possible date consistent with the legitimate needs of those pro bono lawyers;
See what happens on the merits of their asylum cases in a fairer, non coercive system where applicants are encouraged to fully develop claims assisted by lawyers who understand the complexities of asylum law. (This is actually the way the U.N. Convention-based system is supposed to work, but too often doesn’t).
As I have pointed out before, even with unabashed bias and the open encouragement by the TrumpAdministration of blatant anti-asylum adjudications, a significant number of represented Central American applicants continue to win their claims both before the Asylum Office and in Immigration Court.
Without the effects of intentionally coercive detention, and gimmicks intended to limit access to counsel and inhibit preparation, many of those who lose in Immigration Court will have a fair opportunity to exercise their legal rights to pursue their claims before Article III Appellate Courts. While far, far too deferential to flawed agency decision makers, the Article IIIs are much closer to operating as fair, impartial, and unbiased decision-makers than are Immigration Judges working for Barr and his White Nationalist regime.
Over time, I think many more asylum seekers will win their claims. But, whether that happens or not, the process will have more legitimacy. U.S. asylum law will come to represent more than the Administration’s anti-asylum ideology. Those who lose their cases after exhausting their legal avenues for appeal can be removed in a dignified and humane manner after receiving full Due Process.
This incident also graphically illustrates the “reward” received by those Democrats who recently worked in good faith with the Administration to pass “emergency border funding.” Rather than returning that good faith by using funds to improve conditions in detention and to explore the many available options to reduce the instances of detention, the Administration is squandering money in an almost certain to be DOA attempt to expand their White Nationalist Gulag to unnecessarily punish more (Hispanic) families for asserting their legal rights to apply for protection under U.S. laws.
I have seen little or no evidence that this “emergency funding” — falsely advertised as “necessary” to put food in kids mouths and provide them medical care — has been used for those purposes. By all reliable accounts, conditions in DHS detention remain intentionally deplorable. Instead of working in good faith with public interest groups and Democrats to solve the problems with border detention, Big Mac & Co. are off wasting time and abusing their publicly funded salaries by spreading lies and insulting the intelligence of Federal Judges.
Indeed, Big Mac regularly ignores the overwhelming body of medical evidence that any amount of detention has potential lifetime adverse effects upon young people. The idea that the “Flores settlement,” which has been in effect for years prior to the Trump regime, is primarily responsible for fueling a surge of children fleeing the Northern Triangle is beyond absurd. Moreover, as Big Mac is undoubtedly aware, the increase in child refugees is part of a worldwide trend that transcends any particular U.S. court settlement. Actually, it’s the dumb policies of the Trump Administration and their insistence on using gimmicks rather than the legal mechanisms available that has fueled the profits of smugglers.
Enough! This Administration simply cannot be trusted on anything involving immigration and humanitarianism. Democrats need to demand fundamental, demonstrable changes at DHS, including a phase out of most civil detention, and a commitment to fair access to the legal system, as a condition for providing any further funding.
WASHPOST: Catherine Rampell Takes The Measure Of Stephen Miller’s Neo-Nazi View Of American Immigration History – Exposing A Lifelong Hater’s Knowingly False, Misleading & Existentially Dangerous Narrative!
Catherine Rampell Opinion Columnist Washington Post
In a Post profile over the weekend, White House senior policy adviser and de facto immigration czar Stephen Miller explained why he cares so much about immigration policy:
“Immigration is an issue that affects all others,” Miller said, speaking in structured paragraphs. “Immigration affects our health-care system. Immigration affects our education system. Immigration affects our public safety, it affects our national security, it affects our economy and our financial system. It touches upon everything, but the goal is to create an immigration system that enhances the vibrancy, the unity, the togetherness and the strength of our society.”
Miller is right: Immigration does touch all those realms. Though perhaps not in quite the way he suggests.
For instance, immigration affects our health-care system in many ways — including by supplying it with talent.
In fact immigrants are overrepresented in the health industry. About 16.6 percent of the health industry is foreign-born, 13.7 percent of the U.S. population overall. A whopping 29.1 percent of physicians are foreign-born, according to a recent analysis of Census Bureau data published in the Journal of the American Medical Association. Immigrants also are overrepresented among dentists (23.7 percent); pharmacists (20.3 percent); registered nurses (16 percent); and nursing, psychiatric and home health aides (23.1 percent).
Immigration also plays an important role in our education system. International students, who generally pay full freight, have helpedkeep public universities afloat even as state legislatures have slashed their budgets. Their tuition dollars help schools cross-subsidize in-state students. Immigrants also have populated the STEM study programs that Americans show little interest in, especially at the graduate level — where many of those same immigrant students help educate American undergrads.
Here’s the share of students in a selection of STEM graduate programs who are in the United States on temporary visas, according to the National Science Foundation’s Science & Engineering Indicators 2018 report. Note that this measure likely understates the fraction of students who are foreign-born, as it does not include those who are permanent residents or naturalized citizens.
Source: National Science Foundation, National Center for Science and Engineering Statistics, special tabulations (2016), 2015 Survey of Graduate Students and Postdoctorates in Science and Engineering. (Washington Post)
As for the relationship between immigration and public safety, the data suggest you might conclude that greater immigration leads to greater public safety.
ADVERTISING
At least, a study of immigration and crime trends across 200 metropolitan areas over four decades found that “immigration is consistently linked to decreases in violent (e.g., murder) and property (e.g., burglary) crime throughout the time period.” Other studies have found a similar relationship between the two trends. We don’t know that the link is actually causal, of course, but we do have evidencethatundocumented immigrants commit (non-immigration-related) crimes at lower rates than do native-born Americans.
With respect to national security, Miller might do well to remember that immigrants serve in our military. As of 2018, there were 527,000 foreign-born veterans, according to a Migration Policy Institute analysis of Census Bureau data. About 1.9 million veterans are the U.S.-born children of immigrants.
Some of those noncitizen military members with in-demand skills were expecting that their service would expedite their naturalization process, under a program launched in 2008 called Military Accessions Vital to the National Interest. However, changes in recent years, under first the Obama administration and then under Trump, have effectively frozen that program.
What about our economy?
There’s a lot to be said about how immigrants contribute to the economy, including through high rates of entrepreneurship. For example, immigrants have started more than half of the United States’ start-up companies valued at $1 billion or more, according to a National Foundation for American Policy study. They start lots of smaller companies, too, at much higher rates than native-born Americans, according to data from the Kauffman Foundation.
Without immigration, the U.S. working-age population would be falling, which would weigh on economic growth. (Just look at Japan’s struggles). And as I’ve written elsewhere:
There’s reason to believe that new immigrants may depress wages for earlier waves of immigrants who have similar skill sets. However, recent studies suggest that immigration (both authorized and unauthorized) actually boosts labor force participation rates, productivity and wages and reduces unemployment rates for native-born American workers, whose skills these immigrants tend to complement.
But don’t these people drain the public coffers?
Immigrants, including undocumented immigrants, pay taxes — taxes that fund government benefits that in many cases they are not legally eligible to collect.
A report from the National Academies of Sciences, Engineering, and Medicine found that the net fiscal impact of first-generation immigrants, compared to otherwise similar natives, is positive at the federal level and negative at the state and local levels. That’s due mostly to the costs of educating their children. When their children grow up, though, they are “among the strongest economic and fiscal contributors in the U.S. population, contributing more in taxes than either their parents or the rest of the native-born population.” In other words, by the second generation, immigrants are net-positive for government budgets at all levels.
What about the most destitute immigrants who come here, though? Surely they’re sucking the government dry!
Nope.
An internal government report commissioned by Trump found that refugees brought in $63 billion more in tax revenue over the past decade than they cost the government. Finding those results inconvenient, the administration suppressed them, though they were ultimately leaked to the New York Times last year.
So by all means, Miller, please remind the public that immigration has consequences for the broad policy landscape. But remembering the directionality of those consequences seems pretty important, too.
Thanks, Catherine, for setting the record straight!
Catherine’s wonderful article would have fit well within the readings for the Bjorklunden Seminar that Professor Jenn Esperanza and I did earlier this month. Basically, those who oppose and demean immigrants have forgotten that we are all immigrants, we are all very similar, and without immigrants there would be no America.
No, our country isn’t “full” by any means and no, the “quality” of recent immigrants hasn’t “dropped off.” If anything, we are more dependent on the skills, hard work, and loyalty (sometimes hard to fathom, considering how they are treated) of recent immigrants, both documented and undocumented, than at any time in our history since the founding.
Unlike Miller, “Cooch Cooch,” Pence, Trump himself, and the other political hacks charged with making immigration policy these days, I actually spent years dealing face to face with migrants of all types, races, religions, backgrounds, and situations in performing my duties as a U.S. Immigration Judge. Contrary to the false narratives promoted by the “Millers of the world,” most of them wanted just three things 1) the chance to live a relatively safe and stable life; 2) an opportunity to use their skills to support themselves and others; and 3) a better future for their children.
That’s largely what I wanted out of life and accurately describes the aspirations of probably 90%+ of the people I have known as I move into my seventh decade of life.
I don’t know what entitles folks like Trump, Miller, and their followers to demean and dehumanize the contributions of other humans who are just as, or in many cases more, worthy as they are – simply because they didn’t have the same fortune of birth or circumstances.
Undoubtedly, there is somewhere out there a point at which admitting larger numbers of refugees and other types of immigrants would be counterproductive, at least for our country, if not for the migrants themselves. Even then, there might still be moral and religious arguments for helping our fellow men even when it ceases to demonstrably benefit our economy and our society.
But, the factual and moral bankruptcy of the “case for fewer immigrants” put forth by Trump, Miller, and the White Nationalists shows that whatever that “magic number’” might be, it’s multiples of the number of legal immigrants we are admitting at present. That’s why Trump, Miller, and the White Nationalists don’t want to have the real national dialogue that we should be engaging in: How do we expand our current refugee and legal immigrant admission systems to more realistically reflect the market forces that cause migration, and how do we as a country put ourselves in the best position to benefit from the ongoing phenomenon of human migration?
The longer we screw around with and are diverted by the racist myths of the Trumps and Millers, the longer it will take us to get around to the hard work of addressing immigration issues in a smart, humane, and realistic way that benefits the immigrants, our country, and humanity as a whole.
BJORKLUNDEN REPORT, PART I: “American Immigration: A Legal, Cultural, & Historical Approach to Understanding the Complex and Controversial Issues Dominating Our National Dialogue”
I had the pleasure of co-teaching this course with my good friend Professor Jennifer Esperanza of the Beloit College Anthropology Department. The venue was Lawrence University’s amazing Northern Campus, known as Bjorklunden, on the wildly beautiful shores of Lake Michigan in Door County, Wisconsin, from August 4-9, 2019. This was a “derivative” of an immigration component of a summer session of Jenn’s class for undergraduates at Beloit. This time we had a group of 15 enthusiastic, well-informed post graduate students from a variety of professional backgrounds.
Here’s what we set out to achieve:
Class Description:
All Americans are products of immigration. Even Native Americans were massively affected by the waves of European, involuntary African-American, Asian, and Hispanic migration. Are we a nation of immigrants or a nation that fears immigration? Should we welcome refugees or shun them as potential terrorists? Do we favor family members or workers? Rocket scientists or maids and landscapers? Build a wall or a welcome center? Get behind some of the divisive rhetoric and enter the dialogue in this participatory class that will give you a chance to “learn and do” in a group setting. Be part of a team designing and explaining your own immigration system.
Class Objectives:
_Understand how we got here;
_Understand current U.S. immigration system and how it is supposed to work;
_Learn more about the various lived experiences of immigrants and refugees through their personal stories and ethnographic accounts
_Develop tools to become a participant in the ongoing debate about the future of American immigration;
_Get to know a great group of people, enjoy Door County, and have some fun in and out of class
Here are our “five major themes:”
Day 1: An Introduction to Immigration (From the Top Down and the Bottom Up)
Highlight: Getting the “immigration histories” of the participants
Day 2: Labor Migration: Push/Pull Factors
Highlight: Stories and examples of the “hard-work culture” created by various groups of hard-working immigrants to the U.S. both documented and undocumented with a particular emphasis on the culture created by Hispanic restaurant workers
Day 3: “Making Home”
Highlight: Watching and discussing NPR broadcast on German immigrants in rural Wisconsin which related directly to the family histories of many of us in the class (including me)
My coverage of the entirety of refugee history and modern U.S. refugee and asylum laws in 70 minutes (favorite student comment/compliment: “I expected this to be deadly, but it wasn’t.”)
Day 5: Contemporary Issues: The Future of Immigration, Refuges, & Asylum
Highlight: The class presentations of the famous (or infamous) “Mother Hen v. Dick’s Last Resort” “Build Your Own Refugee System” Exercise
Here’s the complete Course Outline (although admittedly we varied from this when necessary):
Jenn and I thank you for joining us. We’ve had our “Last Supper” and our “Final Breakfast” here at beautiful Bjorklunden. That means that our time together is ending.
In five days, we have completed a journey that began on Monday with hunter-gatherers in Africa thousands of years ago, and ends inside today’s headlines about ripping apart families in Mississippi and trying to develop better approaches to refugees: individuals who are an integral part of the human migration story as old as man, and who will not be stopped by walls, prison cells, removals, or cruel, inhuman, and degrading treatment or rhetoric from our so-called “leaders.” On the way, we wound through our own rich immigration heritages and personal stories about how migration issues continue to shape our lives, including, of course, bringing this wonderful group together in the first place.
Jenn shared with you some very personal stories about her own family’s recent immigration experiences and how it shaped, and continues to mold her own life and future. I introduced you, at least briefly, to a key part of my own life, the U.S. Immigration Court, the retail level of our immigration system, where “the rubber meets the road” and where the maliciously incompetent actions of unqualified politicos have created “Aimless Docket Reshuffling” and made a bad joke out of the precious Constitutional right to Due Process under law for all in the U.S. regardless of status or means of arrival.
Our lively class discussions have not been “merely academic,” but real and practical. We have discussed real life scenarios literally “ripped from today’s headlines,” involving real people and real human dilemmas, including the challenges facing those whose job it is to ensure that justice is served. Although this class is done, the learning, the intense human drama, and the “living theater” of American immigration will continue.
Jenn and I have enjoyed working with all of you over this week. The past five days have certainly been a high point for us this summer.
We have communicated our shared values of fairness, scholarship, timeliness, respect, and teamwork! And, we hope that our ability to bond and bridge generational, age, academic, gender, professional, cultural, and geographic gaps to bring you this learning experience has served as a “living example” of how those shared values play out in “real life.”
For me and others like me, our “time on the stage” is winding down. Others, like Jenn and Chuck, are still very much engaged in the production. Still others, like Mary’s inspiring grandchildren, Jenn’s boys, and my eight grandchildren, are “waiting in the wings” to take the stage and assume their full roles in the ongoing drama of human history.
Our hope and challenge for each of you is that no matter where you are in the process of lifelong learning and doing, you will reach your full potential as informed, caring, and compassionate human beings, and that you will continue to strive to make our world a better place! We also hope that something that you have learned in this class will make a positive difference in your life or the life of someone you care about.
Thanks again for inviting us into your lives, engaging, participating, and sharing. Journey forth safely, good luck, and may you do great things in all phases of life!
Here’s our “Class Photo” taken on the deck outside the Lakeside Seminar Room where we met:
Left to right: Steve Handrich, Judge Charlie Schudson, Nancy Behrens, Mary Poulson, Jeff Riester (fellow LU ’70), Chuck Meissner, Genie Meissner, Chuck Demler (LU ’11, Associate Director of Major and Planned Giving), Greta Rogers, Me, Professor Jennifer Esperanza (Beloit College), Renee Boldt, Susan Youngblood, Chris Coles, Cynthia Liddle, Fred Wileman (my cousin), Mary Miech
Here are some shots of Bjorklunden:
Bjorklunden — A Different WorldBjorklunden LodgeLooking South Along Lake Michigan ShoreExploring the Ice Age With “Naturalist Jane”AM on Lake Michigan Looking North Toward Bailey’s HarborMoon Over Lake MichiganLooking East
And, this is Jenn and me conducting our “exit session” @ the Door County Brewing Co. in Bailey’s Harbor:
“Oh, the beauty of exam-free teaching!”
Thanks again to Mark Breseman (LU ’78), Executive Director; Kim Eckstein, Operations Manager; Alex Baldschun, Assistant Director; Jeff Campbell, Head Chef; Mark Franks, General Maintenance Mechanic; Lynda Pietruszka, Staff Assistant/Weekend Program Manager, and, of course, the amazing, brilliant, personable, and talented LU student staff at Bjorklunden for taking care of our every need and making everything work.
The student staff basically runs the place from an operational standpoint. While many universities brag about their hotel and hospitality management programs, as far as I could see the student staff at Lawrence was getting great “hands on” experience and training in hospitality management from the ground up. How do I know? Well, in the “corporate phase” of my career, I represented some of the largest international hotels and hospitality corporations in the world. The “hands on” training that these students were getting appeared to be very comparable to those of well-known hotel management programs and just the type of skills that major hotel chains are always looking for in their executives and managers.
Special thanks to Alex and Kim, for emergency copying and technical services; to Kim for showing me the only “Level 2” Electric Vehicle Charger in Bailey’s Harbor (I’ve recommended that as a proudly eco-friendly institution Lawrence install Level 2 EV Chargers and dedicated plugs for Level 1 EV Chargers in convenient locations on both the Appleton and Northern Campuses); to Jeff for giving me tasty vegan options for every meal; and to Lynda and Mark Franks for their general cheerfulness and “can do” attitude. I also appreciate the student staff who resided on my corridor for putting up with my constant whistling.
I thank Chuck Demler for getting me involved in the Bjorklunden teaching program. I am indebted to Jeff Riester for not sharing his recollections (if any) of our time together as undergraduates at Lawrence with particular reference to our two terms at the Lawrence Overseas Campus then located in Boennigheim, Germany.
Finally, thanks to my good friend and professional teaching colleague Professor Jenn Esperanza of Beloit College (who also happens to be “best buds” with my daughter Anna and her husband Daniel, a fellow Professor at Beloit College) for undertaking this adventure together and being willing to share so much of her very moving and relatively recent personal experiences with immigration and being part of the “American success story.” Jenn and I appreciated the enthusiastic participation of all the members of our group and their signing up for our class.
Hon. Thomas Lister Retired Jackson County (WI) Circuit JudgeMe
A CONCEPTUAL PROPOSAL FOR AN AUXILIARY IMMIGRATION JUDICIARY
By
Paul Wickham Schmidt, Retired U.S. Immigraton Judge and Former Chair, U.S. Board Of Immigration Appeals
&
Thomas Lister, Retired Wisconsin Circuit Judge
Drawing on our judicial expertise gained over decades of working in both Federal and State judicial system, we respectfully set forth a concept for those working in the legislative, political, legal, and judicial systems to use and further develop to promote better, fairer, and more efficient judicial decision-making and to make better use of existing and future judicial resources both in and outside the U.S. Immigration Court system.
To save time, and since neither of us purports to be a legislative draftsperson, instead of submitting a “draft bill,” or the “outline” of such a bill, we advance an idea and the conceptual and practical justifications for it for your consideration and future use in drafting actual legislation.
No knowledgeable individual thinks the current dysfunctional U.S. Immigration Court system can continue without imploding. Just feeding more new, permanent Immigration Judges into an unfair and broken system actually is making things worse as well as outrageously wasting our taxpayer money at a time when deficits are skyrocketing.
All too many newly hired Immigration Judges appear to be neither the best qualified to be judges nor, even if qualified on paper, properly trained in how to deliver “full due process with efficiency” under the immigration laws and in strict compliance with the Due Process Clause of our Constitution.
On the other hand, many retired judges from other Federal and State systems have proven expertise and track records that would allow a competent judicial administrator (there are, to our knowledge, NONE of these currently in DOJ or EOIR) to determine if they are suitable for emergency service and how they could best be trained to effectively and efficiently use their skills as “Auxiliary Immigration Judges” to augment the current and future Immigration Judiciary.
Moreover, since most retired Federal and State judges already have adequate pensions or other means of support, asking them to volunteer to serve on the basis of limited compensation, or even just reimbursement for out of pocket expenses, would not be unreasonable.
We are offering this idea as a way in which those of us with lifetime legal and judicial expertise can use it to improve the delivery of justice in America; it is not intended as a means of enriching or offering alternative full-time employment to current retired judges, from any system.
To name just a few areas of “low hanging fruit,” we believe that:
• Most bonds;
• Initial “Master Calendars” (arraignments);
• Master Calendar scheduling for Individual Hearings;
• Motions Calendars;
• “Status” Calendars;
• Stipulated Final Order and Withdrawal Calendars;
• Individual Hearings on Cancellation of Removal for long-time lawful and unlawful residents;
• Uncontested Adjustments of Status and other types of equitable waivers; and
• Voluntary Departure as the sole application cases
have elements in common with most other types of judicial work.
Using Auxiliary Judges for such cases would allow those judges, from any Federal or State system, with sound work records, that is, those with impeccable reputations for fairness, professionalism, judicial efficiency, and impartiality, to handle these types of immigration adjudications with a modest amount of additional training and in close consultation and cooperation with the sitting Immigration Judges in a particular location.
In this respect, our emphasis would always be on aiding existing, sitting U.S. Immigration Judges, in cooperation with them and at their request, in the ways those sitting judges deem most helpful, fair, and effective.
It would never be on fulfilling inappropriate and unethical “production quotas,” numerical goals, or pandering to interests who want to use the judicial system to fulfill political or law enforcement objectives inconsistent with Due Process, fundamental fairness, or sound judicial administration.
We do not propose that “Auxiliary Judges” ever work directly for or under the supervision of non-judicial political officials as is now, disturbingly, the case in our Immigration Court System. Indeed, the current unwarranted attack on the independence and professionalism of Immigration Judges by unqualified political officials seeking to “decertify” the Immigration Judges’ professional association, the National Association of Immigration Judges, is a prime example of the type of counterproductive activity in which “Auxiliary Judges” should never be allowed to participate, in any way.
By contrast with the types of more straightforward judicial work described above as potential “low hanging fruit,” Asylum Cases, Withholding of Removal Cases, and applications for protection under the Convention Against Torture involve complex legal and factual issues. These are matters that should NOT be delegated to retired judges from other fields.
Indeed, one huge advantage of our proposal is that it would allow existing and future Immigration Judges to spend adequate time (a contested fair hearing on any of these aforementioned protection matters would take a well-trained judge 3-4 hours, minimum) on these types of cases and to receive more and better training on how to fairly and timely adjudicate, consistent with Constitutional Due Process, claims for protection under these laws and International Conventions.
Of course, there would be some administrative costs involved with training and maintaining a list of those willing to serve as “Auxiliary Immigration Judges.” But, they pale in relation to the costs of continuing to throw new permanent positions into a badly broken and dysfunctional system.
Indeed, some, such as the ABA Commission on Immigration, have observed that additional Immigration Judge hiring under current conditions has demonstrably been a waste of taxpayer money that has actually made the system worse and further impaired the delivery of Due Process to those vulnerable individuals whose lives depend on fair, professional, and efficient administration of Due Process and fundamental fairness in our Immigration Courts.
Sadly, we surmise that significant amounts of the “assembly line (in)justice” currently being encouraged and delivered to represented individuals in today’s Immigration Courts will eventually have to be re-adjudicated by orders of the Article III reviewing courts because of legal and/or factual errors. The only reason we don’t include unrepresented individuals in our equation is that these, unfortunately, are often “railroaded” out of our country without realistic access to the Article III Courts.
As lawyers with a combined 90 years of experience working in State and Federal justice systems, as prosecutors, judges, private litigators, educators, and government officials, at both the national and local level, we cannot in good conscience watch the continued deterioration of justice in the Immigration Courts while constructive ideas for improvements and efficiency and fairness are ignored or left unaddressed.
The concept of using retired State and Federal Judges outside the Immigration System to do certain types of cases to augment justice and relieve the incredible stress on full time Immigration Judges, in times of emergency or workload surges, without all the problems inherent in the current hiring of permanent judges by the DOJ, easily could be incorporated into one of the “Independent Article I Immigration Court” bills being advocated and advanced by groups such as the ABA, FBA, AILA, and the National Association of Immigration Judges (“NAIJ”).
The current system is dying before our eyes. We need to “pull out all the stops,” consider “every potential concept,” and utilize “positive professional creativity” (the antithesis of the negative energy devoted to cruel and counterproductive “gimmicks” and outright illegal actions) designed to enhance, rather than denigrate, Due Process, fundamental fairness, and judicial efficiency without sacrificing quality.
It is in that spirit that we respectfully request those involved in legislative reform of our Immigration Court system to consider incorporating our concept of an “Auxiliary Immigration Judiciary” into overall legislative proposals for positive reform of the Immigration Courts now being advanced by all of the leading voices in the field.
Trump Administration Seeks to Silence Federal Immigration Judges’ Union DOJ Files Legal Documents to End the Labor Rights of Judges
Retribution for Speaking Out and Exposing Problems in the Courts
Judges Make Bipartisan Appeal Asking Congress to Create an Independent Court Free From Political Influence
WASHINGTON — On Friday, August 9, the U.S. Department of Justice filed legal documents with the Federal Labor Relations Authority (FLRA) seeking to eliminate the rights of federal Immigration Judges (IJs) to be represented by a union. The petition filed by the administration asserts that IJs are “management officials” who formulate and advance policy.
“This is nothing more than a desperate attempt by the DOJ to evade transparency and accountability, and undermine the decisional independence of the nation’s 440 Immigration Judges,” said Judge Ashley Tabaddor, an Immigration Judge who hears cases in Los Angeles, speaking in her capacity as the president of the National Association of Immigration Judges (NAIJ). “We are trial court judges who make decisions on the basis of case specific facts and the nation’s immigration laws. We do not set policies, and we don’t manage staff,” she added.
The nation’s immigration courts are not part of the judicial branch of the government. The courts where immigration cases are heard are managed by the DOJ, allowing the
nation’s chief prosecutor, the U.S. Attorney General, oversight authority and the power to hire, fire, and control the judges who preside over immigration hearings.
Over the past two years, NAIJ has been highly critical of the administration’s moves to create a quota of 700 cases per year for every IJ and to pressure judges to process cases faster, irrespective of the law and the facts of the case. The NAIJ has also documented and publicly commented on how the government shutdown earlier this year added to the case backlog. Other issues raised by the NAIJ during the Trump years have included challenges to the Attorney General’s stripping IJs of needed docket management authority and depriving IJs of adequate support staff and resources such as interpreters, courtrooms, law clerks, and access to current technology. The move to decertify NAIJ is a clear effort to thwart criticism.
“It’s absurd that anyone would consider us managers,” said Tabaddor. “We don’t even have the authority to order pencils.”
This is not the first time that the DOJ has floated the theory that Immigration Judges are managers. Two decades ago, the DOJ made a similar attempt at decertifying the judges’ union. In 2000, the FLRA ruled at that time that IJs do not act as managers. Since that decision, the role and responsibilities of IJs has further been reinforced as trial judges rather than as managers. In the last two years, for example, the DOJ has eliminated any opportunity for IJs to serve in an advisory capacity to management officials and has repeatedly refused even to consult NAIJ on decisions affecting daily court operations. Additionally, the docket schedule of each IJ is micromanaged to advance law enforcement priorities rather than priorities or scheduling set by an individual judge.
NAIJ is affiliated with the International Federation of Professional and Technical Engineers, a much larger union that represents thousands of highly-educated federal employees including NASA rocket scientists, engineers employed by the U.S. Navy and the Army Corp of Engineers, and administrative law judges who hear cases involving Social Security claims. According to IFPTE’s president Paul Shearon, “This is nothing
more than union busting plain and simple, and part of a disturbing pattern. The White House has
signed a series of executive orders that limit the ability of federal unions to raise questions about abuses and inefficiencies, and they have tried to hinder a union’s ability to fully represent federal workers who are often stuck in a bureaucratic maze.” Added Shearon, “This administration doesn’t want to be held accountable, and they especially don’t want anyone looking over their shoulder on immigration issues.”
“It’s in the best interests of the American people for judges to hear cases based solely on the law and the facts presented, free from political considerations,” said Judge Tabaddor. “This is not a Democrat or Republican or a left, right issue.” NAIJ has long advocated for Immigration Judges to be placed in an independent agency, similar to the nation’s bankruptcy and tax courts, rather than under the control of the DOJ. In recent months, this move to create an independent agency to operate the immigration courts has been gaining traction on both sides of the aisle in Congress.
“We think many on Capitol Hill, from both parties, will oppose this effort to mute the nation’s Immigration Judges,” said Tabaddor. “When Congress returns in September, we will redouble our efforts to maintain judicial independence and due process through the creation of an independent court. The DOJ’s actions, designed to silence judges and their union, further demonstrates why judges who hear immigration cases need to be placed in an independent agency. Our rallying cry as we make the rounds in the halls of Congress will be ‘remember August 9’.”
The National Association of Immigration Judges (NAIJ), founded in 1971, is a voluntary organization formed with the objectives of promoting independence and enhancing the professionalism, dignity, and efficiency of the Immigration Court.
WASHINGTON, DC – On Friday, August 9, 2019, the U.S. Department of Justice (DOJ) petitioned the Federal Labor Relations Authority (FLRA) in an effort to strip immigration judges of their right to be represented by a union. In the petition, DOJ asserts that immigration judges should be considered “management officials” and therefore should be excluded from forming or joining labor unions. The National Association of Immigration Judges (NAIJ), the recognized collective bargaining representative of our nation’s immigration judges, deemed DOJ’s claim as “absurd” and said that DOJ’s actions are “designed to silence judges and their union.” Representatives Jerrold Nadler (D-NY) and Zoe Lofgren (D-CA) of the House Judiciary Committee also decried the move in a statement this week.
Benjamin Johnson, Executive Director of the American Immigration Lawyers Association (AILA) responded, “DOJ’s petition to decertify the NAIJ is an effort to suppress the voices of immigration judges, who have denounced DOJ efforts to strip their authority. Ironically, while the petition contends that immigration judges are ‘management officials,’ this Administration has made every effort to limit the judges’ independence, management, and authority – micromanaging dockets, limiting discretion in adjudication, and imposing strict performance quotas.
Congress must protect the sanctity of due process, efficiency, and fairness in the court system by exercising its oversight authority over these politically motivated actions of the DOJ. Oversight alone is not enough; these actions are only possible because DOJ has total control over the immigration court system. America can no longer afford to have a system that can be so easily manipulated. AILA urges Congress to pass legislation establishing an independent immigration court under Article I of the Constitution.”
Cite as AILA Doc. No. 19081591.
**********************************************
An outrageous waste of our taxpayer money, abuse of our legal system, and unlawful attempt to silence the Administration’s critics. Note that the ONLY U.S. Immigration Judges who have a right to “speak out” against the fraud, waste, and abuse of the system by the current Administration (in other words, to “speak truth”) are senior officials of the NAIJ.
The DOJ and EOIR have effectively “muzzled” the rest of the active Immigration Judges. They are not allowed to speak to the press. Under this Administration, they aren’t even allowed to participate in educational programs and seminars aimed at educating the public about practice before the Immigration Courts.
Yet, while treating the judges little better than well-paid but overworked clerks, the Department of Justice asserts, with a straight face, that they are “management officials.” Just what, one might ask, are they “managing?”
Moreover, since judges generally need support but little if any day to day “management” in a functioning system (I wonder how much time Chief Justice Roberts spends “managing” his colleagues or how much time any Chief Judge in a legitimate system spends “managing” his or her judicial colleagues), what’s the purpose of the bloated management structure in the “EOIR Tower” in Falls Church, VA?
The real needs of the Immigration Judges — more clerks, more time off the bench to prepare, more educational opportunities, better equipment, better courtrooms, less time spent on non-productive work like reporting progress on case quotas — remain unaddressed by what passes for “management” at today’s EOIR. The filing of this meritless “decertification petition” by EOIR appears to be yet another in the long series of disingenuous efforts by DOJ and EOIR to deflect attention from their own gross mismanagement of the Immigration Court system that has helped to create monumental, unprecedented backlogs even as more resources are thrown into the maelstrom.
A truly horrible system — essentially a “Rube Goldberg Contraption — that must be abolished by Congress and reinstituted as an independent Article I Court dedicated to delivering “Due Process with efficiency.”
Due Process forever; malicious incompetence never!
This paper critiques US immigration and asylum policies from perspective of the author’s 46 years as a public servant. It also offers a taxonomy of the US immigration system by positing different categories of membership: full members of the “club” (US citizens); “associate members” (lawful permanent residents, refugees and asylees); “friends” (non-immigrants and holders of temporary status); and, persons outside the club (the undocumented). It describes the legal framework that applies to these distinct populations, as well as recent developments in federal law and policy that relate to them. It also identifies a series of cross-cutting issues that affect these populations, including immigrant detention, immigration court backlogs, state and local immigration policies, and Constitutional rights that extend to non-citizens. It makes the following asylum reform proposals, relying (mostly) on existing laws designed to address situations of larger-scale migration:
The Department of Homeland Security (DHS) and, in particular, US Citizenship and Immigration Services (USCIS) should send far more Asylum Officers to conduct credible fear interviews at the border.
Law firms, pro bono attorneys, and charitable legal agencies should attempt to represent all arriving migrants before both the Asylum Office and the Immigration Courts.
USCIS Asylum Officers should be permitted to grant temporary withholding of removal under the Convention Against Torture (CAT) to applicants likely to face torture if returned to their countries of origin.
Immigration Judges should put the asylum claims of those granted CAT withholding on the “back burner” — thus keeping these cases from clogging the Immigration Courts — while working with the UNHCR and other counties in the Hemisphere on more durable solutions for those fleeing the Northern Triangle states of Central America.
Individuals found to have a “credible fear” should be released on minimal bonds and be allowed to move to locations where they will be represented by pro bono lawyers.
Asylum Officers should be vested with the authority to grant asylum in the first instance, thus keeping more asylum cases out of Immigration Court.
If the Administration wants to prioritize the cases of recent arrivals, it should do so without creating more docket reshuffling, inefficiencies, and longer backlogs
My long-time friend Don Kerwin, Executive Director of CMS, has been a “Lt. General of the New Due Process Army” since long before there even was a “New Due Process Army” (“NDPA”). Talk about someone who has spent his entire career increasing human understanding and making the world a better place! Don is a great role model and example for newer members of the NDPA, proving that one can make a difference, as well as a living, in our world by doing great things and good works! Not surprisingly, Don’s career achievements and contributions bear great resemblance to those of our mutual friend, the late Juan Osuna.
So, when Don asked me to consider turning some of my past speeches about our immigration system and how it should work into an article to honor Juan, I couldn’t say no. But, I never would have gotten it “across the finish line” without Don’s inspiration, encouragement, editing, and significant substantive suggestions for improvement, as well as that of the talented peer reviewers and editorial staff of JMHS. Like most achievements in life, it truly was a “team effort” for which I thank all involved.
Those of you who might have attended my Boynton Society Lecture last Saturday, August 10, at the beautiful and inspiring Bjorklunden Campus of Lawrence University on the shores of Lake Michigan at Bailey’s Harbor, WI, will see that portions of this article were “reconverted” and incorporated into that speech.
Also, those who might have taken the class “American Immigration, a Cultural, Legal, and Anthropological Approach” at the Bjorklunden Seminar Series the previous week, co-taught by my friend Professor Jenn Esperanza of The Beloit College Anthropology Department, and me had the then-unpublished manuscript in their course materials, and will no doubt recognize many of the themes that Jenn and I stressed during that week.
Perhaps the only “comment that really mattered” was passed on to me by Don shortly after this article was released. It was from Juan’s wife, the also amazing and inspiring Wendy Young, President of Kids In Need of Defense (“KIND”):“Juan would be truly honored.”
Donald M. Kerwin Executive Director Center for Migration StudiesJuan P. Osuna (1963-2017) Judge, Executive, Scholar, Teacher, Defender of Due ProcessWendy Young President, Kids In Need of Defense (“KIND”)Me
